Argument preview: The CSRA and the right to vindicate constitutional claims

Posted Fri, February 17th, 2012 11:46 am by Steve Vladeck

I. Introduction

As the D.C. Circuit put it twenty-five years ago, “it has become something of a time-honored tradition for the Supreme Court and lower federal courts to find that Congress did not intend to preclude altogether judicial review of constitutional claims in light of the serious due process concerns that such preclusion would raise.” When the Supreme Court hears arguments in Elgin v. U.S. Department of the Treasury on February 27, this time-honored tradition will be lurking in the background as the Justices consider the scope of administrative review available to former federal civil service employees under the Civil Service Reform Act of 1978 (CSRA).

II. The CSRA and statutory bars to employment

At the heart of the dispute in Elgin is a 1985 federal statute (codified at 5 U.S.C. § 3328) that bars from civil service employment in the executive branch any individual born after 1959 who, despite being required to register for the Selective Service, knowingly and willfully declined to do so. Four former government employees who were fired or forced to resign because of this statutory bar sought to enjoin the provision in federal district court in Boston. Specifically, the plaintiffs maintain that (1) Section 3328 is an unconstitutional bill of attainder; and (2) it unconstitutionally discriminates on the basis of sex since, thanks to the exclusion of women from the Selective Service, it can only apply to men.

Whatever the merits of the plaintiffs’ claims (the latter of which may well be foreclosed by Rostker v. Goldberg), the real question in Elgin is whether the district court was empowered to consider them. In the CSRA, Congress provided an alternative administrative remedy for certain government employees to challenge the basis for their removal if the removal is “for such cause as will promote the efficiency of the service.” Although the CSRA nowhere provides that these administrative remedies are meant to be exclusive, the Supreme Court has hinted – and some lower courts have squarely held—that in cases in which such review is available under the CSRA, the removed government employee must first seek review before the Merit Systems Protection Board. An adverse decision from the MSPB may in turn be appealed to the Federal Circuit, whose decisions are reviewable via certiorari by the Supreme Court. Superficially, then, Elgin appears to turn on the relatively technical question of whether it is sufficiently clear, notwithstanding the silence of the statutory text, that Congress in the CSRA intended for the administrative remedial scheme to be exclusive.

The complication in Elgin is the uncertainty surrounding whether the plaintiffs’ claims are in fact reviewable via the MSPB process. The district court (which ultimately ruled against the plaintiffs on the merits) held that it had jurisdiction because the MSPB is not empowered to review claims arising out of an “absolute statutory prohibition” to employment, such as the bar provided by Section 3328. And as Judge Stahl pointed out in his concurring opinion in the First Circuit, “[t]he MSPB consistently dismisses appeals related to terminations pursuant to § 3328 on these grounds, a position the government regularly advances before the Board and on which it succeeded in the MSPB appeal by [Elgin himself].” Indeed, the relevant Office of Personnel Management regulation specifically states that, once the agency determines that Section 3328 applies, “[t]here is no further right to administrative review.” As the district court and Judge Stahl reasoned, if these claims do fall outside the scope of the MSPB’s jurisdiction, it is difficult to believe Congress meant for such review to be exclusive – all the more so because such a result might raise serious constitutional questions.

The First Circuit nevertheless held that the CSRA review scheme implicitly forecloses the district court’s jurisdiction. Writing for a divided panel, Judge Boudin explained that, even if the MSPB “may be powerless to strike down the statute, the Federal Circuit on review of the Board may do so, and, if it agreed with the plaintiffs on the merits, remand to the Board to grant relief.” In other words, in the First Circuit’s view, the process created by the CSRA could provide for vindication of the plaintiffs’ constitutional claims, even if only on petition for review to the Federal Circuit. Judge Stahl disagreed, arguing that “the Federal Circuit has never reached beyond the limits of the MSPB to hear the merits of a claim otherwise barred from review. In only one instance has it hypothesized the possibility, and never before has it acted on the idea.” Thus, in Judge Stahl’s view, whether review in the Federal Circuit is available in theory, it has not been available in fact. Judge Stahl nevertheless agreed with the district court that the plaintiffs’ underlying constitutional claims are ultimately meritless.

III. Elgin in the Supreme Court

If the briefing in the Supreme Court is any indication, the outcome may well turn on whether the Justices are more inclined toward Judge Boudin’s or Judge Stahl’s assessment of the Federal Circuit’s authority. In their merits brief, petitioners open with the argument that because the CSRA does not expressly divest federal district courts of the equitable authority to entertain constitutional claims, that should be the end of the matter regardless of the scope of the Federal Circuit’s jurisdiction. Invoking long-standing canons of statutory interpretation with regard to the equitable powers of the district courts, petitioners offer a series of fairly compelling policy reasons for why Congress should not be allowed implicitly to divest district courts of their traditional equitable authority.

The remaining two-thirds of petitioners’ opening brief, though, is devoted to explaining why Judge Stahl was correct – and why the review provided by the CSRA would not provide them with a meaningful opportunity to litigate their constitutional claims. In particular, they articulate in substantial detail how, even if the Federal Circuit has the power to reach issues over which the MSPB lacked jurisdiction, it would nevertheless be left to decide constitutional claims like those at issue in Elgin without the benefit of a factual record. And although these two central arguments are presented separately, it is difficult to imagine, as petitioners conclude, that Congress in the CSRA could have meant to displace the district courts’ traditional equitable powers with such truncated (and non-administrative) review in the Federal Circuit.

Like the petitioners, the government’s merits brief begins with arguments based on Congress’s intent before moving to the review actually available under the CSRA. Although the government concedes that the CSRA does not expressly oust the district court’s jurisdiction, it nevertheless maintains that administrative review should be allowed to displace such authority when Congress’s intent is “fairly discernible.” As for the scope of review provided by the CSRA, the government’s reasoning largely tracks that of Judge Boudin for the First Circuit: “[E]ven if the MSPB lacks authority to decide certain constitutional claims, that would not render the CSRA’s statutory scheme inapplicable to such claims. Instead, . . . all it would mean is that the Federal Circuit would address the constitutional argument in the first instance.” And if further factual development was necessary to resolution of the underlying constitutional claims, the government noted, the Federal Circuit has the authority to remand the matter to the MSPB.

Perhaps tellingly, though, the government’s brief never suggests that the CSRA scheme should be seen as exclusive even if meaningful review is not available in the Federal Circuit. Ultimately, whether or not the prospect of meaningful review in the Federal Circuit is sufficient to displace the district court’s equitable authority, all sides appear to agree that it is necessary.

IV. Conclusion

Throughout its merits brief, the government repeatedly analogizes the question presented in Elgin to the Supreme Court’s 1994 decision in Thunder Basin Coal Co. v. Reich. There, the Court held that the Federal Mine Safety and Health Act implicitly precluded district court jurisdiction over a pre-enforcement constitutional challenge to an administrative order issued under the statute, even though the Act was explicit as to the exclusivity of administrative review for post-enforcement challenges and silent as to the exclusivity of pre-enforcement administrative review. As in Elgin, there were substantial questions in Thunder Basin concerning the agency’s ability to provide meaningful review of the plaintiffs’ constitutional claims, questions which the Court sidestepped by holding that “petitioner’s statutory and constitutional claims here can be meaningfully addressed in the Court of Appeals.” Thus, Justice Blackmun explained, “This case thus does not present the ‘serious constitutional question’ that would arise if an agency statute were construed to preclude all judicial review of a constitutional claim.”

Although the parties will no doubt devote substantial portions of the oral argument to the question of whether Congress’s intent is as clear in this case as the Court concluded it was in Thunder Basin, the ultimate disposition will far more likely turn on whether the Justices believe that, as in Thunder Basin, meaningful review is both formally and practically available in the Federal Circuit.

Major Cases

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

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Nielsen v. Preap The judgments of the U.S. Court of Appeals for the 9th Circuit -- that respondents, who are deportable for certain specified crimes, are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail -- are reversed, and the cases are remanded.

Washington State Department of Licensing v. Cougar Den Inc. The Supreme Court of Washington’s judgment -- that the “right to travel” provision of the 1855 Treaty Between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation -- is affirmed.

Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.